It is one thing to have a system where different rules apply to different population cohorts. Quite another when a subsector of society accepts it. Or worse, imposes a different standard on itself. Yet, that is exactly what Congress has done when it comes to the system of checks and balances across the three branches of the federal government enshrined in the U.S. Constitution. It is called the filibuster.
The executive branch makes decisions based on a majority of one. When a president issues an executive order he does not need a super majority or support of even one member of the opposition party. Abraham Lincoln best articulated the powers of the chief executive during the Civil War. Often he would discuss conduct of the war with his cabinet, even allowing them to take a vote. But often summarized the outcome as follows. “Seven no and one aye, the ayes have it.”
The same holds for the judiciary. Two recent cases which have contributed to corruption of American democracy were decided by simple majorities, i.e. 5-4 decisions. Nor does an opinion require concurrence by at least one judge appointed by a president of each party. [NOTE: In both cases, all five justices who joined the majority opinion were appointed by Republican presidents.] In Citizens United v. Federal Election Commission the Court nullified federal and state restrictions on campaign financing which led to an increase in both the number and anonymity of large individual and corporate donors and the amount they contribute during an election cycle.
Likewise, in Shelby County v. Holder, a simple majority overturned federal preclearance of changes in state election laws authorized under the Voting Rights Act of 1965. Not because the federal government does not have the authority. Instead, the majority focused on a technical issue. Identification of specific states which were subject to federal oversight, based on past voter suppression practices, used outdated information. And this is what is most important. In Chief Justice John Robert’s majority opinion, he specifically noted that reinstatement of preclearance was dependent on Congress enacting a new coverage formula.
Which brings me to the King Edward VIII of American constitutional government, the U.S. Senate. If the Supreme Court, by a simple majority, says that Congress has the right to update the 1965 legislation, why would the Senate hamper its efforts to do so by imposing a rule which requires a super majority, i.e. three-fifths of its members. So, even if there are some senators who do not want to fully eliminate the filibuster, the Supreme Court has handed them the criterion for carving out an exception. When the Court declares by a simple majority that Congress is responsible for correcting a deficiency in current legislation, Congress should be able to do so by a simple majority. Such legislation is sitting on Chuck Schumer’s desk in the form of H.R. 4 The John R. Lewis Voting Rights Advanced Act of 2021 and could be enacted tomorrow if the Democrats chose to invoke this exception to the filibuster.
Sometimes the Senate need not call for a vote. The current debate over the debt limit could be solved by simply reading Article I, Section 8, Clause 1 of the Constitution.
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
Please show me where it says Congress has the right to default on the national debt. It says “The Congress shall have Power…to pay the debts.” As with the Second Amendment, this may be a case of punctuation. One could argue that the other financial authorities–taxes, duties, imposts and excises–are established “in order to pay the Debts…” Chuck Schumer and Nancy Pelosi could immediately announce the Constitution does NOT require Congress to take any action to cover the nation’s obligations. Therefore, no additional legislative remedy is needed. And add, “if we are wrong, let the Supreme Court tell us and the Treasury we are mistaken.”
And if the court decides the case by a simple majority–five to four–the Senate should then be able to raise the debt limit by the same standard, sans filibuster.
POSTSCRIPT: CAVEAT EMPTOR
As readers know, I have been wary of eliminating the filibuster for fear of what would happen the next time the GOP controls both houses of Congress. Not because I do not think Congress should be responsive to the will of a majority of voters. Rather, because it institutionalizes the fact that even when the Trump/McConnell/McCarthy version of the Republican party might retake control of both houses of Congress in 2022, they still do not represent a majority of voters. Take North Carolina for example. In 2020, Republicans won eight of the 13 House races despite the fact Democrats outpolled Republicans by 30,000 votes when you add up the aggregate statewide ballots in all 13 contests.
Even in states, such as Ohio, where the GOP wins the popular vote, their share of the congressional delegation is disproportionate to their share of the popular vote. In 2022, Republicans won 10 of 16 seats (62.5 percent) in House races with only 56.4 of the popular vote. Can you say “gerrymander?” I knew you could.
Which brings me to yesterday when Mitch McConnell agreed to a two month increase in the debt limit to avoid a Treasury default on current obligations. I have a theory McConnell wants the Democrats to blow up the filibuster. If he honestly believes he will return as majority leader in January 2023, nothing would make him happier than a filibuster-free pathway to make America more like Texas, Florida and South Dakota. And being able to make the argument, “Don’t blame me. Chuck Schumer made this possible.”
For what it’s worth.